Local judge’s DUI order creates headache at Pitkin County Jail over weekend
A recently issued order from a local judge means anyone arrested for DUI in Aspen and Pitkin County now will be held in jail until a court hearing in front of a judge.
The order — issued Sept. 23 by Pitkin County Judge Erin Fernandez-Ely — caused overcrowding issues at the Pitkin County Jail this weekend after three men were forced to share a small holding cell, while an 18-year-old woman spent two nights alone in the jail’s second holding cell, said Pitkin County Sheriff Joe DiSalvo.
“(All the men) were all sleeping on the floor together,” DiSalvo said Monday. “Is that what we want for our citizens? I don’t think so.”
Fernandez-Ely, however, said Monday state law mandates that anyone arrested for DUI — driving while ability impaired or driving while under the influence of drugs — must be brought before a county judge, who will set bond conditions, possibly monitored abstinence and address community safety.
In addition, Fernandez-Ely said she’s concerned that those arrested for DUI could be released from the jail with their car keys while still intoxicated, and that people sometimes agree to bond conditions they don’t understand while intoxicated. Asked if she had any plans to rescind the order based on conditions at the Pitkin County Jail over the weekend, Fernandez-Ely answered quickly.
“No,” she said. “It’s a great order.”
Ninth Judicial District Attorney Jeff Cheney said Monday that while Fernandez-Ely appears to be altering the way DUI arrests historically have been handled in his district and elsewhere, he thinks she is right.
“I think the judge’s order is correct based on my reading of the statute,” Cheney said. “Her order is in the plain language of the statute.”
In fact, the applicable DUI state law — which went into effect in August 2018 — says that anyone arrested for DUI must not only be taken before a county court judge for a bond, but also must be held in custody until they are sober and can effectively attend the bond hearing, he said.
“The intent by the judge was genuine and sincere to protect the community and those arrested,” Cheney said. “I think the judge is very reasonable.”
The problems began Friday just before 6 p.m., when sheriff’s deputies arrested a 45-year-old Pitkin County man on Brush Creek Road on suspicion of DUI. Ten hours later, an Aspen police officer arrested an 18-year-old Aspen woman downtown on suspicion of DUI. Then, at about 8:30 p.m., Aspen officers arrested a 51-year-old man at the roundabout on suspicion of drunken driving.
Finally, Aspen police arrested a 45-year-old Aspen man early Saturday morning on suspicion of assault, drug possession and domestic violence, the latter of which already required an appearance before a judge before release from jail.
That meant the men had to share a 10-foot-by-10-foot holding cell — during a pandemic — for more than 24 hours and sleep on mattresses on the floor, DiSalvo said. The 18-year-old woman was housed alone in the second holding cell for about 36 hours.
In the past, those arrested on suspicion of DUI for the first time would be taken to the jail, booked, issued a summons and released back in to the custody of the officer or deputy who arrested them. That officer or deputy was then responsible for releasing the person to a sober person or getting them home or to a safe environment, said Pitkin County Undersheriff Alex Burchetta and Aspen Assistant Police Chief Bill Linn.
Anyone arrested on suspicion of their second or higher DUI would be subject to the same procedures, though they would have to post a prescheduled bond.
Fernandez-Ely’s new order forced the jail to hold all four of those arrested until Tuesday because Monday was a new holiday called Frances Xavier Cabrini Day.
Complaints about the capacity issue from DiSalvo and jail officials, however, eventually got Cheney involved, and he agreed to $1,000 personal recognizance bonds until Tuesday when all will be required to appear before Fernandez-Ely. Those three arrested on suspicion of DUI were released by about 9 p.m. Sunday, DiSalvo said.
The sheriff said he cannot put anyone into the jail’s general population until they are sober and cleared medically. However, he said he wouldn’t put anyone arrested on suspicion of DUI in with general population inmates anyway for safety reasons.
Fernandez-Ely and Linn said they’d heard in the past year of the jail releasing an intoxicated person who was immediately pulled over for DUI again. However, a records custodian at the Aspen Police Department found no evidence of that in the past year to 15 months. Pitkin County’s records custodian was off Monday, though DiSalvo said he’d heard of no such arrests in the recent past.
DiSalvo and Burchetta emphasized that if the jail had to make the decision about releasing someone, deputies will only do so to a sober friend or family member or they will hold the person until they are sober.
Going forward, DiSalvo said he’s not sure what he will do because he has to find a way to comply with Fernandez-Ely’s order. Doing so might require converting a general population cell into another holding cell at the jail, he said.
“Don’t ask me for a solution,” DiSalvo said. “I don’t have one yet.”
Cheney said he’s been told that the other two counties in the 9th Judicial District — Garfield and Rio Blanco — summons and release DUI arrestees, as do numerous other counties. He said that with all the “upheaval” over the issue last weekend, he plans to investigate the issue further and advise the other counties on what he finds.
“The issue has been raised to my attention, so obviously I will give it some attention,” Cheney said.
And while he doesn’t think his initial reading of the law is wrong, he said he is “humble enough to know I could be wrong.”
Still, the 2-year-old Colorado law mandating DUI defendant appearances before judges for a bond reads succinctly.
“It’s very clear,” Cheney said.
Editor’s note: This story has been updated to reflect there were four people arrested over the weekend, three men and a woman.
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